Citation Nr: 1242395
Decision Date: 12/12/12 Archive Date: 12/20/12
DOCKET NO. 10-33 630 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin
THE ISSUE
Entitlement to service connection for amyloidosis, claimed as secondary to Agent Orange/herbicide exposure.
REPRESENTATION
Appellant represented by: Wisconsin Department of Veterans Affairs
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The Veteran had active service from September 1966 to October 1969. He served with the Marines in Vietnam and his medals and badges include the Purple Heart Medal and the Combat Action Ribbon.
This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the Milwaukee and Philadelphia ROs denying entitlement to service connection for primary systemic amyloidosis.
The Board notes that a review of the record reveals that service connection is in effect for: Post-traumatic stress disorder, rated as 70 percent disabling; diabetes mellitus, rated as 20 percent disabling; and cerebral vascular disease, rated as 10 percent disabling. A combined disability rating of 80 percent has been in effect since August 1, 2011.
FINDINGS OF FACT
1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange/herbicides therein.
2. AL amyloidosis is a disease presumed to be associated with Agent Orange/herbicide exposure.
CONCLUSION OF LAW
The criteria for service connection for amyloidosis are met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) redefined VA's enhanced duties to assist and notify Veterans with their claims. Regulations regarding the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2012)).
Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
The United States Court of Appeals for Veterans Claims (Court) has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim. Those elements are: 1) Veteran's status; 2) existence of a current disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
As the Board is granting entitlement to service connection for the disability at issue, the claim is substantiated, and there are no further VCAA duties with regard to it. Wench v. Principi, 15 Vet. App. 362, 367, 9368 (2001).
Pertinent Legal Criteria
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3. 303 (a).
Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) inservice incurrence or aggravation of a disease or injury, and (3) a causal relationship, that is, a nexus, between the claimed inservice disease or injury and the current disability. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a).
Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second or third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: 1) that a condition was "noted" during service; 2) post service continuity of same symptomatology; and 3) a nexus between a current disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303 (b).
Service connection may also be granted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).
If a Veteran was exposed to Agent Orange during service, certain listed diseases, including AL amyloidosis, are presumptively service connected if they manifest to a degree of 10 percent or more at any time after service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.
A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a) (6) (iii).
Factual Background and Analysis
The Board has thoroughly reviewed all the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the Veteran or in his behalf. See Gonzales v. West, 218 F. 3d 1378, 1380 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to the Veteran).
The Veteran claims that he has amyloidosis that is due to his Agent Orange exposure in service. His personnel records reflect that he served in Vietnam, and he is therefore presumed to have been exposed to Agent Orange. The Board notes that availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct incurrence basis. See 38 U.S.C.A. § 1113 (b); 38 C.F.R. § 3.304 (d).
There are no notations of complaints, treatment, or diagnoses of any type of amyloidosis in the service treatment records or for many years following service discharge.
The evidence of record documents the presence of amyloidosis from the late 1980's.
The record includes a June 1997 statement from James C. Nettum, M.D. The physician stated the Veteran recently had undergone a CT scan of the chest that showed what appeared to be amyloidomas bilaterally.
Private medical records from Peter A. Beatty, M.D., reflect that he treated the Veteran in the early 2000's for disabilities that included systemic amyloidosis.
In a September 2006 statement Dr. Beatty, a physician with expertise in hematology and oncology stated that the Veteran had been a patient of his for almost 15 years and carried a diagnosis of pulmonary amyloidosis. He stated that he recently performed a bone marrow aspirate and biopsy to exclude either systemic amyloid or multiple myeloma. He indicated there was no evidence of these disorders. He believed the Veteran appeared to have amyloidosis confined to the lungs and this had been stable for over a decade.
A pulmonary medicine physician stated in November 2006 that he had reviewed biopsies from 1987 and spoke to a pathologist at a private hospital. He indicated the biopsies were "quite convincing that these nodules within your lung are a nodular form of pulmonary amyloidosis. This is different from diffuse infiltrating amyloidosis, and as such does not appear to have affected your lung function much." He added that he was unable to find any information linking Agent Orange exposure to the formation of nodular amyloidosis, but he had not seen convincing studies to approve that it was not related either.
A VA physician reviewed the claims file in July 2009 for the purpose of providing an opinion as to whether the Veteran has primary amyloidosis. He noted that review of records at the St. Mary's Hospital for lung nodules in 1989 found no evidence of pulmonary amyloid. He stated that workup at that time revealed no evidence of systemic amyloidosis (AL). He referred to the aforementioned comment from Dr. Beatty in September 2006 indicating that the Veteran appeared to have amyloidosis that was confined to the lungs. He also referred to the statement from the pulmonary medicine specialist dated in November 2006 that the amyloidosis found on biopsy of the nodules within the lungs was a nodular form of pulmonary amyloidosis. He indicated there was also a comment in the medical record about skin nodules, but he stated there was no skin biopsy that he could find to substantiate pathologic diagnosis of what the skin nodules were. He expressed the opinion that although there was a reference to skin amyloidosis in the VA medical records, in the absence of a biopsy of these nodules, the statement could not be relied upon. He concluded that the Veteran does not have "primary amyloidosis (AL) by evidence in the claims file records as of the date of this dictation." He opined the Veteran had amyloidosis that was confined to a single organ system which in this case was the lungs. He stated this type of amyloidosis was referred to as organ specific amyloidosis.
Received at the Board with a waiver of consideration by the RO was an April 2012 communication from Dr. Nettum in which he stated the Veteran had been a patient of his for over 15 years. He stated the Veteran had been diagnosed with "primary, systemic, or AL amyloidosis in the late 1980's..."
Based on the above, the Board finds that the weight of the evidence supports entitlement to service connection for AL amyloidosis as diagnosed by the Veteran's longtime long time treating physician. That being the case, it follows that service connection is authorized for the Veteran's amyloidosis as a result of his exposure to Agent Orange while serving in Vietnam.
There are differing opinions of record as to the type of amyloidosis the veteran has. A VA physician reviewed the record in 2009 and opined that his review of the record led him to believe that the Veteran did not have primary amyloidosis (AL) in the absence of skin amyloidosis in the VA treatment records. He believed the persuasive evidence of record showed that the Veteran had amyloidosis that was confined to the lungs area only.
Of record is a June 2010 statement from a physician at the Mayo Clinic. She indicated that she saw the Veteran in July 1997 for consultation regarding a diagnosis of primary amyloidosis localized in the lungs.
However, more recently, the Veteran's principal treating physician stated clearly, although without elaboration, in April 2012, that what the Veteran has is primary, systemic, or AL amyloidosis that was diagnosed in the last 1980's. That physician has indicated having treated the Veteran off and on for more than 15 years and the Board believes it is reasonable to it is presumed that he has more awareness of the Veteran's situation than anyone else. The Board finds his statement, although not very detailed, to be sufficient to find that the Veteran has primary amyloidosis. The opinion at least places the evidence in relative equipoise. That being the case, the
Board finds the case is resolved in the Veteran's favor. Accordingly, service connection under the presumptive regulation pertaining to Agent Orange exposure is in order.
ORDER
Service connection for AL amyloidosis is granted.
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WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs